FLSA Lawsuit and Bargaining Update 02/21/2021
By now you’ve seen an email from HR regarding another 2017-2019 backpay adjustment. This adjustment is due to a lawsuit that the WLEA filed against the DOT, which charged the state for the deliberate, improper payment of the retroactive portion of the March 01, 2020 CBA.
To recap, the 2017-2019 CBA was passed by the legislature and signed into law by Governor Evers, effective as of 03/01/2020. Back pay was part of the CBA, and we all know that it was the product of years of negotiation. We needed to address back pay without jeopardizing our end goal, which was large jumps in pay points going forward, along with dropping the grid end point from 10 years to 7 years. We had proposed a flat payout for a few reasons. It would have simplified the payout, and it wouldn’t have run afoul with FLSA. It was the state that refused that offer. In the end our agreement paid out large sums to over half the bargaining unit and smaller sums for those who were not at 7 or more years on the grid. Before we finished negotiations, the bargaining team was assured that overtime would be paid out.
When the backpay posted, it became clear that the overtime had been paid without adhering to the FLSA required rate of time and a half. Several calls between myself and the state were made in attempt to fix the issue, however I was told that this is what we’d agreed to. I continued to press them, and I was told that there was no clarifying language in the CBA on how the OT should be paid. My counter to that was that there was also no language saying the state could simply chose not to pay at the premium rate. They disagreed, even when presented the relevant portion of the Federal DOL’s Code of Federal Regulation. In 29 CFR, there was a clear example that supported the WLEA’s position. The state told me that it was up to the WLEA to do better next time.
At that point, we turned the case over to our attorney, Chris MacGillis. The culmination of this entire debacle is the email you received from HR saying money will be paid out.
So, I know that a lot of you are looking at the pay and trying to math it out for yourselves. Here’s the scoop: in 2020, our backpay checks DID have our overtime included, just not at the premium rate of pay. In effect, they paid you 2/3 of the value of your overtime hours. This adjustment should be making that oversight whole by paying out that last 1/3. An example: say Trooper J. Doe got an adjustment of $0.10, and J worked 100 hours of overtime. J should have gotten his overtime paid out at $0.15, for a total of $15.00. But the state calculated his OT at base pay, and J. got $10.00 in 2020. This adjustment should pay J $5.00.
In conclusion, we’ve won this argument. It did not come easy, but it was the right thing for us to do.
I’m sure some of you have followed along by monitoring CCAP. There is still a hearing scheduled for March 12th on this lawsuit.
In closing, I want to thank Trooper Joe Dashek for having the courage to stand up and be the named plaintiff in this lawsuit. Thank you Joe!
We are still meeting with the state. There are several minor disagreements on language issues. We are getting close to an agreement on compensation. We do not have a formal date scheduled to meet again until March 16th. I am hoping that we can continue to speed the talks along through email. We are currently waiting for the states counter.